Planning judicial review

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action. 42 U.S.C. § 9613(h)(4). Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.In Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014), the Seventh Circuit held that, notwithstanding CERCLA Section 113(h)(4), where a cleanup has been divided into phases, parties may challenge “completed” phases even where other … [Read more...] about Judicial Review of a Superfund Clean-up Can Proceed in Stages

On June 17th, the U.S. Supreme Court resolved a decade of conflicting circuit court opinions when it held in Federal Trade Commission v. Actavis, Inc.,[1] that “reverse-payment” settlements of Hatch-Waxman Act patent lawsuits “can sometimes violate the antitrust laws,”[2] and for that reason are to be analyzed under the rule of reason standard. These settlements have become a common method of settling patent disputes between branded and generic pharmaceutical companies, yet their legality under the antitrust laws had been in sharp dispute in the federal appellate courts. The Supreme Court’s decision to apply the rule of reason standard was novel, as the Circuit Courts had previously either found such settlements presumptively unlawful (subject to a “quick look” review standard) or generally permissible. Chief Justice Roberts’ dissent vigorously attacked the majority’s “unruly” rule of reason standard, … [Read more...] about Supreme Court Rules That Reverse-Payment Patent Litigation Settlements are Subject to Judicial Review Under the Antitrust Rule of Reason

Twenty-five years ago, the U.S. Supreme Court ruled that courts should review an ERISA participant’s claim for benefits under a de novo standard of review unless the plan gives the plan fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Since then, courts have considered what type of plan language suffices to grant plan fiduciaries discretionary authority to warrant the more deferential arbitrary and capricious standard of review.The issue has garnered a fair amount of attention in the context of employer-provided disability insurance plans. Courts have been particularly focused on whether the requisite discretion is conferred when the plan requires that claimants present “proof satisfactory to us” (e.g., the plan administrator) to receive benefits. Four circuits [the Sixth, Eighth, Tenth and Eleventh Circuits] have ruled that such language clearly grants discretionary authority to the plan … [Read more...] about A Court’s Review of a Disability Benefit Claim May Hinge on the Meaning “Satisfactory to Us”

On Wednesday, March 21, 2012, the United States Supreme Court unanimously held that administrative orders issued by the U.S. Environmental Protection Agency (USEPA) under the Clean Water Act (CWA) are subject to pre-enforcement judicial review under the Administrative Procedure Act (APA). Sackett, et vir, v. EPA, 566 U.S. ____ (2012). The Supreme Court ruled against USEPA and in favor of the couple that brought the suit, the Sacketts, who argued they were entitled to bring a civil action under the APA to challenge USEPA's issuance of an administrative compliance order issued under § 309 of the CWA.The Sacketts own property in Idaho near Priest Lake. They planned to build a home on the property and obtained a county permit to do so. Gravel had been placed for the foundation when USEPA issued the Sacketts a compliance order alleging the property contains wetlands subject to the CWA and the Sacketts violated the CWA by filling it in without a permit. The compliance order required the … [Read more...] about Supreme Court Allows Pre-Enforcement Judicial Review of USEPA Administrative Compliance Orders Under the Clean Water Act “CWA”

The California Environmental Quality Act (CEQA) was originally adopted with the goal of disclosing and weighing the environmental impacts of discretionary actions by state agencies and local governments. While CEQA has certainly resulted in greater consideration of the environmental impacts of development, a common complaint is that CEQA has become a powerful tool for NIMBYism, slowing down projects with substantial environmental benefits, such as dense urban development, based on concerns only tangentially related to the environment.Recent legislation has resulted in modest efforts to refocus CEQA. SB 375, passed in 2008, promotes greater coordination of regional transportation plans with regional greenhouse gas reduction goals. It also provides targeted CEQA relief for transit-oriented development, as well as relief from considering growth inducing or traffic impacts for certain residential or mixed-use projects consistent with local transportation plans. SB 226, … [Read more...] about Recent CEQA Legislation Streamlines Review for Green Building and Renewable Energy Projects

On December 30, 2011, the U.S. Court of Appeals for the D.C. Circuit issued a stay of the Cross-State Air Pollution Rule (“CSAPR”) that became final on October 7, 2011. The rule, designed to replace the Clean Air Interstate Rule (“CAIR”) that had been promulgated in 2005 and remanded, but not vacated, in 2008, applies to fossil fuel-fired electric generating units (“EGUs”).CSAPR imposes limits on the interstate transport of emissions of nitrogen oxides (“NOx”) and sulfur dioxide (“SO2”) from multiple states in the eastern, Midwestern, and southern United States that, according to the Environmental Protection Agency (EPA), affect the ability of downwind states to attain and maintain compliance with national air quality standards for particulates and ozone. CSAPR included a January 1, 2012, compliance deadline for those states subject to SO2 and annual NOx reductions and an additional compliance date of May 1, 2012, for those … [Read more...] about Judicial Review of EPA’s Cross State Air Pollution Rule – What to Expect Next

The recent California appellate court decision in Concerned Dublin Citizens v. City of Dublin, Cal: Court of Appeal, 1st Appellate Dist., 3rd Div. 2013, upheld a City's affirmation that residential developments are exempt from CEQA review if the development is consistent with, and implemented pursuant to, an approved specific plan for which an environmental impact report (EIR) was certified. In addition, the fact that the certified EIR did not specifically address climate change or any of the new laws and regulations related to climate change or greenhouse gas emissions that have been implemented since the completion of the EIR, does not trigger the need for a supplemental EIR.As new residential development picks up steam in California, many of the new projects will be implementing specific plans approved five or more years ago. A number of new laws and regulations relating to climate change, including AB 32 and SB 375, as well as greenhouse emission significance thresholds, have … [Read more...] about Certain Residential Developments Exempt from California Environmental Quality Act (CEQA) Review: Greenhouse Gas Emission Issues Do Not Constitute New Information

On February 9, 2016, the U.S. Supreme Court granted a stay of the Clean Power Plan requested by 27 states, coal companies, utilities, and several trade associations. News of the order granting the stay spread like wildfire across the nation, having become a top news story overnight.The road to the historic stay order began less than 12 hours after US EPA officially published the Clean Power Plan in the Federal Register. On October 23, 2015, it was met with an influx of legal challenges and motions to stay the rule and expedited briefing.On January 21, 2016, the D.C. Circuit denied motions to stay the rule, but granted expedited briefing and scheduled oral argument for June 2, 2016. But that was far from the final word on the matter.In less than a week after the D.C. Circuit decision, challengers filed five applications with the Chief Justice of the Supreme Court requesting a stay of the Clean Power Plan. As Solicitor General Donald B. Verrilli Jr. wrote in EPA’s Supreme … [Read more...] about How Challengers Obtained Stay that Put US EPA’s Clean Carbon Plan on Hold

Review under the National Environmental Policy Act (“NEPA”) can be one of the most costly and time consuming components of any federal project or action. Often, the hurdle of NEPA can be so substantial that necessary projects fall by the wayside. Recognizing the tremendous burden environmental review can create, President Obama signed into law the Fixing America’s Surface Transportation Act, known as the “FAST Act,” on December 4, 2015. In addition to providing funding for infrastructure projects, the Act—specifically within Title XLI—seeks to streamline the rules for permitting and environmental reviews for projects under NEPA. It seeks to accomplish this by eliminating duplicative reviews, setting strict project timelines, ensuring best practices, and limiting opportunities for judicial review. Additionally, a new office will be created to administer and set timelines for expedited review. Covered Project … [Read more...] about Congress Adopts “FAST Act,” Seeking Expedited NEPA Review For Major Infrastructure Projects

In 2009, the North Carolina General Assembly adopted Senate Bill 44 , an act that codified the case law regarding quasi-judicial land use proceedings, including the proper standards and procedures for judicial review. See N.C. Gen. Stat. § 160A-393. Quasi-judicial land use decisions include, among other things, decisions involving variances, special and conditional use permits, and appeals of administrative decisions. See N.C. Gen. Stat. § 160A-393(b)(3). The adoption of this new statute took the effort of many accomplished land use attorneys and interested stakeholders. In fact, discussions regarding the need for this legislation originated before my legal career even began. So, when I read a recent Court of Appeals decision involving the denial of a special use permit by a quasi-judicial body, I was befuddled as to why the opinion did not contain a single citation to G.S. § 160A-393. In … [Read more...] about Hey Wait, What About North Carolina’s Fancy New Quasi-Judicial Statute?